The ‘Mutualisation’ of Maritime Risk in the Crown of Castile, 1300–1550

Abstract

Risk, especially maritime risk, is based on the existence of danger, namely, natural or anthropogenic phenomena whose form, incidence, and intensity must be described and quantified. Therefore, the chronological succession of events, their interpretation, management, and conflict resolution vary in accordance with a series of factors: local traditions, maritime culture, management instruments, institutions that manage the phenomenon, and the customs or norms deployed in order to address maritime conflict. These factors underpin local peculiarities which have largely been ignored in the study of European economic and social development. In line with this historiographic and theoretical framework, this essay analyzes the evolution of the ‘mutualisation’ of maritime risk in some of the territories of the Crown of Castile and how it differs from other European regions, as it evolved from being merely a mutual aid mechanism to becoming a specific type of business. Second, I identify the instruments by which maritime risk was managed, their juridical formulation, and the mechanisms of mutual aid with specific reference to the legal instruments of General Average and jettison.

The research for this essay was conducted thanks to funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and Innovation Programme ERC Grant agreement No. 724544: AveTransRisk—Average—Transaction Costs and Risk Management during the First Globalization (Sixteenth-Eighteenth Centuries). Translated by Ruth MacKay.

Risk, especially maritime risk, is based on the existence of danger, namely, natural or anthropogenic phenomena whose form, incidence, and intensity must be described and quantified. Therefore, the chronological succession of events, their interpretation, management, and conflict resolution vary in accordance with a series of factors: local traditions, maritime culture, management instruments, institutions that manage the phenomenon, and the customs or norms deployed in order to address maritime conflict. These factors underpin local peculiarities which have largely been ignored in the study of European economic and social development.

In line with this historiographic and theoretical framework, this essay analyzes the evolution of the ‘mutualisation’ of maritime risk in some of the territories of the Crown of Castile and how it differs from other European regions, as it evolved from being merely a mutual aid mechanism to becoming a specific type of business. Second, I identify the instruments by which maritime risk was managed, their juridical formulation, and the mechanisms of mutual aid with specific reference to the legal instruments of General Average and jettison.

The Origin of Mutual Aid in Maritime Traffic

The first expression of mutualisation with regard to seafaring activities can be found in the establishment of seafarers’ and fishermen brotherhoods or confraternities (cofradías) in coastal towns.¹ These were the institutions that best reflected medieval Christian ethics based on brotherly love, though there was criticism and doubt regarding their real contribution to the common good, and even about their Christian spirit. Furthermore, urban communities developed the ideal of civic republicanism on the principles of shared responsibility and equal and mutual relations, which established the bases of mutual aid associations.

These types of organizations spread throughout Europe from the end of the thirteenth century, carrying out tasks through their own specific tribunals which were granted special or exclusive local jurisdictions that higher political powers could not perform with the same efficiency. These prerogatives allowed them to quickly, and authoritatively, handle complicated and changing naval, mercantile, common, and international laws and customs to address merchants’ interests, always with the aim of reaching agreements among the parties rather than for the actors having to resort to ordinary courts. Thus maritime communities avoided adding more juridical uncertainty to their already risky profession, which was far more exposed than others to the dangers of financial ruin: there was theft, piracy, fraud, cheating, inflation, monetary devaluation, embargos, and seizure of merchandise, not to mention economic crises, warfare, international conflict, and social upheavals.

Brotherhoods were organized in such a way that they could address members’ needs; they were strengthened by their ordinances in managing economic activities, the defence of their interests against outside pressure, and deal with conflict resolution, and proselytism. Ordinances regulated the profession and supported the idea of a private law (Ius privatista), entailing jurisdictional exclusion of town judges (alcaldes) and royal governors (corregidores), given that brotherhoods enjoyed autonomous jurisdictional powers. Clearly brotherhoods and guilds were ‘structures of sociability’ based on mutual aid and the distribution of risk typical of maritime activities.²

In the Middle Ages, as sea traffic and economic and cultural exchanges developed, there was growing agreement on the need to control, watch over, and regulate the dividing line between maritime affairs and commercial activity, and authorities together with the commercial communities themselves set about establishing protective mechanisms. One outcome was the establishment of the Almirantazgo in southern Castile, part of the Hispanic monarchy’s institutionalization policy,³ as well as the Almirall in the Crown of Aragon ,⁴ and the Hermandad de la Marina de España, or Hermandad de la Marisma, which established mercantile naval jurisdiction in the northern Spanish coast.⁵ This process reflected the need to organize legal and institutional structures to safeguard and regulate maritime commerce under the protection of privileges granted by the authorities. But the establishment in Castile of special jurisdictions for maritime business was a late phenomenon, and at first was not applied to the entire kingdom. The documentation I have consulted indicates that during the thirteenth and fourteenth centuries only Seville enjoyed a special maritime jurisdiction.⁶

However, during the fifteenth century, the principal points of maritime mercantile law were defined, and the bases of exclusive jurisdiction and the control and management of maritime mercantile activities were consolidated. Thus crown strategy and the protectionist policies of certain mercantile corporations were a harbinger of mercantile practices typical of the early modern age.

The Mutualist Geography of Medieval Atlantic Castile

During the thirteenth century, King Alfonso X programmatically elaborated his expansionist objectives for the Castilian Atlantic coast through a decisive policy of founding coastal towns to reinforce naval strength. In the north, the foundation of the ‘Cuatro Villas de la Costa’ (San Vicente de la Barquera, Santander, Laredo, and Castro Urdiales)⁷ and the development of certain Basque towns ensured connections with European ports and further provided the necessary ships for maritime activities.⁸ A century later Castilian monarchs followed the same strategy along the Vizcayan and Guipuzcoan coasts.⁹

In southern Castile, meanwhile, which was associated more with Mediterranean and African commerce than with Northern Europe, the establishment of the Almirantazgo ensured the building of ships in local shipyards, the creation of a Barrio de la mar (Quarter of the sea) in which there would be an exclusive judge appointed by the monarchy, and the establishment of the post of admiral (almirante), the latter in charge of maritime activities but especially of the military functions of fleets or navies. In other words, this was a post with full jurisdiction over seafarers, commercial navigation, and the control of contraband.¹⁰

The formation of the Barrio de la mar was of note given the growing importance of the Guadalquivir River from the thirteenth to the fifteenth centuries, just after the incorporation of medieval Andalusia into the crown of Castile.¹¹ This brought about a reorganization of the international commercial axes between the Atlantic and the Mediterranean. With the Strait of Gibraltar as a connecting passage, Andalusia gained in strategic importance, which favoured the trade of its products and furthered connections with the outside world.¹² As a result, Andalusia became one of the richest regions, with the river playing a crucial role in determining regional organization and hierarchization.

Thus the Guadalquivir itself developed into a complex maritime hub, with Seville as the interior port under royal control, and Cadiz as a seaport run instead by local aristocrats (señores). Given its status as a sort of sluice gate or lock, Cadiz soon became the site of foreign merchants’ consulados, granting dynamism to its relationship with merchant traffic in both the Mediterranean and the Atlantic.¹³ The Seville-Cadiz axis became one of the most important economic and financial centres of the Crown of Castile . Seville was the business and bureaucratic centre and the supplier of wheat and oil, while Cadiz, given its exceptional location, acted as the warehouse. As a naval and commercial port it was a maritime crossroads, an obligatory stopping-off point on all the African, Atlantic, and Mediterranean routes.¹⁴

We do not find within this port system the development of a local mutualist culture such as evolved in the northern part of the peninsula, given that Seville was characterized not by guilds (gremios) or brotherhoods (cofradías), but rather by groups of inhabitants who practiced a given profession or industry with internal governance of their own affairs.¹⁵ Seafarers, shippers, and merchants would have to wait more than two centuries to obtain their own universidad (association) with an autonomous jurisdiction. Nevertheless, the important presence of foreign mercantile communities in southern ports generated synergies directly related to maritime traffic.

The establishment of consulados and similar associations by the ‘Italian’—Genoese, Florentine, Venetian—and Basque communities sharpened mercantile dynamics in the port towns, through the creation of their own associations.¹⁶ This example was followed by Iberian merchants, with, for example, the establishment of the Vizcayan fraternity (Cofradía de los vizcaínos),¹⁷ a professional brotherhood with religious connotations although still organized along the lines of a closed guild accepting only pilotos born in the coastal Basque provinces; the guild of Basque seafarers (Gremio de mareantes vascos); and the college of Vizcayan pilots in Cadiz (Colegio de pilotos vizcaínos en Cádiz), which was confirmed by the Catholic Monarchs in 1500 though its establishment dated from earlier.¹⁸

In contrast, in northern Castile, first the mutualist corporations, and later the merchant universidades of Burgos and Bilbao, developed their own financial mechanisms. In this context, why do we mention Burgos, which is in the interior? Because Bilbao took advantage of its privileges in terms of customs and of its position as the Northern gate of Castille, while Burgos, the leading exporter of Castilian wool, was to depend on a port 100 kilometres away to integrate itself into international trade. Some historians have detected an ad hoc port complex in this special and spatial relationship, one that was energized, competed, and developed in line with the evident tensions between the two urban centres since the start of the fifteenth century, particularly concerning the role and status of each in Northern European centres.¹⁹

Local and foreign actors were also present in the sociocultural geography of the port space in Bilbao and the Nervión River. This commercial area, as has been already stated, expanded from the hinterland of Burgos, because it was the Burgos Association of Merchants (Universidad de Mercaderes), later becoming a consulado, which had jurisdiction over Castilian ships and their chartering. This concession brought about a sharp change in the manner international navigation and commerce were organized, and set off a veritable torrent of lawsuits by Basque merchants, maestres, and ship-owners.²⁰ At some point before 1477, the Vizcayans established a mercantile corporation similar to that of Burgos, though not with the formal name, which was charged with attending to ship manifests for cargo entering the port of Bilbao as well as granting concessions for loading permits.²¹ In 1481–89, it appears in the documents as the Association of Merchants and Ship Masters of Bilbao (Universidad de mercaderes y maestres de nao de Bilbao). The association organized the cargo system from 1489 and ordered that no ship could go to sea ‘sin tomar dinero de Dios y contar averías’.²² The first antecedent of a contribution for the support of seamen or fishermen was called dinero de Dios (monies of God) and it was a fixed contribution collected by the Bilbao and Burgos ship-owners and merchants associations for almsgiving.²³ It amounted to ten maravedis per vessel to be distributed as follows: one third for the construction of churches, one third to confraternities, and the last third for the relief of poor merchants or their widows and orphans.²⁴

Through the so-called dinero or avería de la nación the Castilian nacion based in Bruges supported its own costs, namely administrative costs and wages, its chapel and costs associated with the social life of the mercantile community. This was a mandatory contribution based on the value of the goods traded, a sort of membership fee for merchants of what can be described as a professional association. The expression contar averías was used to describe the collection and management of this contribution.²⁵

In 1494, the Consulado de Burgos was established. Its royal charter (pragmática)²⁶ granted it sole jurisdiction over mercantile suits concerning loading, consulados abroad, averías, etc. The directors of the Consulado held authority to administer justice and oversee the chartering of ships going to foreign markets, including ships not only from Vizcaya and Guipúzcoa, but also the Villas de la Costa and the Merindad de Trasmiera. The pragmática removed mercantile jurisdiction from the ordinary courts, from then on each consulado had its own ordinances regulating maritime traffic. Clearly, the pragmática bestowed enormous privileges upon the merchants of Burgos, setting off a violent dispute with those of Bilbao regarding their respective rights over ships carrying wool.²⁷ Burgos became the centre of business for export merchants and the Iberian Peninsula’s most important financial centre.

As a result, Basque merchants, especially those from Bilbao, complained about their new secondary status. Bilbao's universidad filed a bitter protest that was supported by allies in Guipúzcoa, Álava, and throughout Vizcaya.²⁸ In response, the crown proposed a meeting between the two sides, which ended badly. In a royal writ of 1495, the Consulado of Burgos was denied jurisdiction over the Señorío (i.e. Bilbao), and the crown also altered its accounting rules, ordering that each shipper be able to load whichever ships they wanted, that ships from Burgos and Bilbao be chartered together, and that each universidad divide the corresponding averías.²⁹ In 1499, when an annual fleet to Flanders was established, it was ordered that Burgos would set prices for the wool cargo and Bilbao would do the same for iron.³⁰

Finally, the Consulado of Bilbao was established in 1511. Its full name was “Consulado, Casa de Contratación, Juzgado de los negocios de mar y tierra y Universidad de Mercaderes de Bilbao.” New ordinances were drawn up regarding maritime insurance, setting off more conflicts with Burgos and the collapse of existing socioeconomic networks.³¹ The latent tension became obvious with attempts to organize maritime mercantile activities, the solution being that Burgos managed the wool trade and Bilbao maritime trade. There was no turning back, and a new order was clearly on the horizon: modern times, with the promulgation of ordinances for the Consulados of Bilbao and Burgos.³²

Mutualisation of Maritime Risk ‘según la costumbre castellana’

Expression used in a 1402 freight contract, which specifies it follows the ‘Iberian custom’, see A. García Sanz, ‘Estudios sobre los orígenes del Derecho Marítimo hispano-mediterráneo’, Anuario de Historia del Derecho Español, XXXIX (1969): 213–316, 274.

In the European Mediterranean and Atlantic, the most typical payment or contribution supporting consulates and associations was called the avería, a term applied to damages suffered or undergone during navigation. In the realm of maritime law, it has a broader definition and can be linked to the Latin terms avere, aver, habere, and avers, all of which were in use throughout the Mediterranean since the twelfth century in the context of pacts among merchants through which they shared risks among those transporting merchandise on board.³³ Within the territories of the Aragon crown, these types of agreements were known as pactos de hermanamiento, and they established ‘risk-sharing association’ of sorts. Within these agreements, each merchant contributed in proportion to the value of the merchandise he loaded onto the ship.³⁴ Later on the word avería was used to refer to damages leading to claims lodged with insurers, and it also referred to any extraordinary expenses or damages.³⁵ To summarize, by the late Middle Ages, in the territories of the Kingdom of Castille, there already existed different types of Averages (averías) . The three main types were: avería de Universidad , the contributions of merchants to support the costs of consular activities; averías communes , used to describe the ordinary expenses of setting up and properly furnishing a commercial vessel; avería gruesa was used instead to describe those extraordinary defence costs which were occasionally necessary to ensure the safety of commercial voyages.³⁶

From the beginning of the sixteenth century, sailing on the Western seas was increasingly complicated and dangerous, as these European Atlantic waters were infested with Portuguese, Spanish, Irish, English, and French pirates, making some sort of protective mechanism necessary, especially with piratical activities expanding at the same rate as maritime traffic.³⁷ This general insecurity was caused by several factors: proper piratical activities, officially sanctioned privateering, and frequent bouts of war, all interplaying factors which led to navigation being organized in convoys or fleets with ships protected by escorts.³⁸ A policy of dubious utility as some of the maestres were reluctant to follow instructions, and abandoned convoys they deemed to be too slow. In other occasions, the frequent bad weather of these seas dispersed the fleet, rendering navigation in convoy impossible.³⁹

In Castile, avería was used in reference to a mutualist contribution or dues whose juridical formulation grew out of two aspects: mercantile law, with its tendency towards simplicity and immediacy, and the maritime experience, with all its risks. From there, the framework of application broadened, and avería came to be understood as a variety of different means for mutually supporting losses so as to protect the business enterprise. This usage then was adopted by the realm of political power, as an instrument of finance after the discovery of America, when voyages went from lasting a few weeks to a few months, with entailed far greater dangers, leading to the period of the Carrera de Indias.⁴⁰ In addition, the averías, both comunes and gruesas, cannot be considered as part of a kingdom’s or state’s fiscal system, or as a public contribution, because they originated from a guild-like institution created by seamen and had been in use for a long time, acquiring their identity and form over time.⁴¹

Thus one can ask, when and how did these Hispanic instruments come into use? When did the confusion between the different varieties of averías begin? The antecedents have to do with the activities of the Castilian nacion established in Bruges, which included all the King of Castile’s subjects, first in the form of a confraternity (1414)⁴² and then as a consulado (1428).⁴³ However, the growing rivalry between Basques and Castilians meant that this unity would be destroyed. Legal proceedings before the Bruges Chamber in 1451 were the first steps in the eventual break between the two communities, which was formalized in an arbitration judgement handed down by Henry IV on 29 August 1455.⁴⁴ From then on there would be two consulados in Bruges: one was called the consulado of Spain—or sometimes of Castilla y León, or even of Burgos—gathering merchants and traders from the interior of the Kingdom of Castile south of the Ebro River; the other was the consulado of Vizcaya—or the Vizcayan nacion, or the Nation of the Coast of Spain, openly stating that ‘the nation of Vizcaya was separate from the nation of Spain’. This comprised Vizcaya, Guipuzcoa , Álava, and the Coast of Spain, the latter referring to seafarers and merchants from the Cantabrian seabord and Galicia.⁴⁵ A century later the division still stood, as will be described in the following pages.

The origin, destination, and management of the different types of averías contributions created uncertainty, even for institutions, in both Spain and abroad. In 1515, on the occasion of a dispute among the consuls of Vizcaya, Guipuzcoa, and the Coast of Spain on the one hand, and Florentine merchants on the other, on account of contributions the Italians owed for averías. The Council of Bruges, given the complex and obscure nature of these payments, discussed three major types: the first was grosse et commune avarie; the second was petite; and the third was called denier de nation for the Vizcayans⁴⁶ and massaria for the Italians.⁴⁷ The Flemish judiciary thus established some order regarding the types of averías, especially concerning the sort under examination in this essay.

The scarcity of Castilian sources for the fourteenth and fifteenth centuries limits our ability to provide an exhaustive analysis of the definition, juridical formulation, and management of various sorts of averías. Only once the consular ordinances of the sixteenth century and beyond were issued can we truly understand the device and its modalities.

In 1521, a new concept appeared which, though it could not solve the piracy problem, could at least mitigate it: this was the avería del comercio de Indias, whose purpose was none other than to decrease navigational risks through a financial ‘security service’ paid for by private parties.⁴⁸ Payments were mandatory and proportional to the cargo, a preventative manner of protecting their property while diminishing the extraordinary risk of piracy. The solution was for those involved in maritime trade to contract their own security service, given the state’s inability to resolve the problem, though the seed of state intervention was present from the start.⁴⁹

After Columbus’s voyages and the inauguration of new commercial routes, the avería would gain a further dimension. The administrative apparatus began fitting out the fleets and collecting the avería tax, which became consolidated under the control of the Royal Treasury.⁵⁰ But with time it became clear that the administration’s results were not satisfactory. The crown once again decided to entrust the task to private parties, using the so-called asiento system, which had been in use in 1521–1537.⁵¹ Thus within the American trade different meanings of the word avería emerged. Averías gruesas were of two types: (a) those which were sometimes necessary to reinforce the military protection in moments of a particular danger, and (b) those which would be now described as ‘General Averages’, namely those extraordinary expenses which were deemed necessary due to storms or casus fortuitus forcing the jettison of cargo for the safety of the whole enterprise.⁵² Those latter costs were proportionally redistributed between the ship and the owners of the extant part of the cargo.⁵³ The evolution of the concept and its potential multiplication and the existence of different processes all called Averías created a certain amount of confusion.

Within the Iberian environment at large, historians generally distinguish between two large types of averías: (a) ordinary, simple, or particular (also referred to as avería consular) which are preventative and collected, and (b) common, general (gruesa), or jettison, which are compensatory or reparatory. The former are associated with mutualist dues or contributions that guild members must pay for the consul and the naval protection; the latter are recognized as avería-daño, or maritime risk or General Average or jettison Average. Both in juridical literature and in laws and ordinances, starting with the Partidas up through the eighteenth century, all of them are included with the wider concept of navigational risks as referring to all types of risks, those coming from the sea and the forces of Nature, but also those deriving from men, including those due to negligence or malice.

General Average and Jettison

Avería gruesa, in the realm of maritime law, has meant a variety of things, though the common denominator has been the notion that parties involved in maritime adventures should exhibit solidarity towards one another, and have an obligation to contribute in the case of a sacrifice or expense made for the preservation of the common undertaking. This solidarity arises from the idea of a commonality of interests, or mutualisation, which materializes on each voyage. In the following pages I will analyze the evolution and application of the avería gruesa according to the usos españoles which were different to those of other European Atlantic areas.

Under the assumption that all these premises grew from early Mediterranean navigational traditions and codes, the Hispanic concept of avería gruesa has its roots in the Liber Iudiciorum, a collection of Visigoth regulations in Spain that later were translated, modified, and updated from Latin into Castilian Spanish upon the order of Ferdinand III, King of Castile. During the fourteenth and fifteenth centuries these were granted as charter laws (fueros) to certain southern towns on the Iberian Peninsula⁵⁴; these grants were known as the Libro de los Jueces , or the Fuero Juzgo.⁵⁵ The code established the bases of Hispanic maritime law, two of whose definitions were seafarers' autonomy and the obligation to contribute to a common undertaking.

Shortly thereafter, in 1255, with the issuance of the Fuero Real, further precision was arrived at concerning two basic concepts of maritime law: that items lost during shipwrecks or jettisons belong to those who had loaded them onto the ship, and that all freighters must contribute to indemnify those who lost their goods to jettison.⁵⁶ A further step in the construction of the concept of risk management in Castilian maritime law can be found in the Siete Partidas which, along with the Fuero Juzgo, reflect the monarchy's strategy regarding mercantile activities in the Atlantic.⁵⁷ Alfonso X the Wise revolutionized the situation when he became the first European monarch to order that mercantile and maritime institutions be handled apart from ordinary jurisdiction. However the Partidas would be implemented only in the following century, during the reign of Alfonso XI.

It is, precisely, in the Partidas where one finds the most detailed regulations concerning maritime affairs, particularly in Partidas II, III, and V.⁵⁸ Part II is devoted to maritime warfare and distinguishes the Armada from the fight against corsairs, and also concerns the division of booty (titles 24, 26, and 27); part III is devoted to chartering (fletamentos) (title 18); and part V, the most important for our purposes, contains regulations regarding maritime mercantile law, with titles V and IX concerning, respectively, maritime law and the regulation of maritime traffic.⁵⁹ The Partidas also regulate the respective responsibilities of the person who sells a ship (law 5. 35), the shipper (transportista) (1.8), the charterer (fletante) (1.13), the ship-owner (1.26), and seamen (1.27).

On the regulation of traffic, it outlines the duties of the maestre (1.1), his responsibility in cases of negligence (1.9), his capacity to discipline others (1.2), punishments or fines (penas) in case of shipwreck (1.10), and external factors that might promote shipwreck (1.11). Finally, it makes a direct reference to avería gruesa (1, 3, 4, 5, 6, 8, 12), especially concerning flotsam washing ashore and considered the property of its owners (1.7), merchandise taken by corsairs (1.13), and the capacity of maritime judges to take summary action (1.15).

The juridical formulations in the Partidas concerning avería gruesa would appear to be drawn from the Digest⁶⁰ and the Rôles d'Oléron⁶¹ or, more precisely, its Castilian translation, the Leyes de Layron,⁶² specifically the contribution of goods and ships in case of jettison, the contribution in case of jettison followed by shipwreck, per broken mast, in case of shipwreck, due to losses in trans-shipment or transfer, and in cases where ransom was paid to corsairs.⁶³

Originally, in the Digest the term was linked to the development of the gruesa ventura, a sort of insurance and prevention system or an incipient form of mutual insurance among merchants and ship-owners when maritime insurance did not yet exist.⁶⁴ It has been argued that the difference between avería gruesa and maritime insurance was that ‘policies of maritime insurance included coverage of persons other than the merchants, the insurers, in return for payment of a premium by the insured, the merchants. In contrast, with avería gruesa it was the merchants themselves, along with ship-owners, who bore the risk, the expenses, and the damages; it was a prorated system of solidarity’.⁶⁵

Castilian law defined avería gruesa as a situation in which ‘interested parties in a common maritime voyage share the economic cost of damages suffered by any one of them and make efforts to save the ship, the cargo, or both at the same time’.⁶⁶ This was a voluntary prorating to benefit the common goals of the undertaking that had to be borne by all those present on the ship. Therefore in its genesis the avería attempted to lessen the damaging consequences of accidents due to ordinary and extraordinary risks both to the merchandise and to the ships, at a time when either insurance did not exist or when the risks included in insurance formulas of the day were not all present. Jettison (echazón) is defined as ‘throwing the cargo or part of the cargo off the ship so as to lighten the load’,⁶⁷ that is, to save the ship. This was a decision to be made by the maestre , after discussing it with the merchants on board, or their agents, and the crew, either due to urgent necessity or for the common benefit of all cargo. Therefore, following the description contained in the Partidas, jettison is the most common event in initiating a case of avería gruesa.

Once the bases of medieval Castilian maritime law were set, laws concerning avería gruesa were incorporated into other ordinances and codes, making the Hispanic juridical system more systematic. In the fifteenth century, the compendium known as the Ordenamiento de Montalvo cited and adapted all the various royal orders in the Partidas, the Ordenamiento de Alcalá (1348), and a wide range of bulls and writs issued by monarchs and other authorities on a wide range of issues. In Book VI of the Ordenamiento de Montalvo, concerning administrative law, two laws contained in title XII refer to maritime risk, following ius commune tradition.⁶⁸ The Cortes of Toledo in 1480 noted that flotsam after shipwrecks was the property of the owners of ships and cargo, and they also established that ships finding refuge in ports owing to bad conditions at sea could not be charged duties there.⁶⁹ In 1484, the Catholic Monarchs confirmed this regulation for seamen in the Ría of Pontevedra in Galicia.⁷⁰

In the early sixteenth century, as maritime trade broadened and expanded, the consulados of Bilbao and Burgos clarified and better defined juridical devices for managing risk. This was the point at which the concept of avería gruesa would be refined. In 1514, the Burgos guild, more attentive to business than that of Bilbao, issued a declaration concerning insurance policies.⁷¹ Later, Bilbao issued its own ordinance on maritime insurance in 1520.⁷² In both documents, the formulation of avería gruesa was adapted to new mercantile perspectives arising from the appearance of new markets and business opportunities. The Consulado of Burgos ordinance was promulgated in 1538.⁷³ Those of Bilbao were modified in 1531, but ratified by the King only in 1560, precisely defining conditions of averías, and particularly of avería gruesa.⁷⁴

The broad and detailed Burgos ordinance contains two distinct parts: the first concerns the internal organization of the institution, its governance, and mercantile jurisdiction; and the second part concerns maritime risk and insurance, including avería gruesa, which reflects the keen interest in the subject. The ordinance describes avería gruesa, jettison, and risgo; and explains,

we take risks and run risks with the sea, the wind, and fire ... and whatever other danger and fortune of any means or sort that might come upon us and occur, or which has come upon us and occurred, because we run the risk together and insure or take it upon ourselves, and in the way described we run the said risk, except in cases of owner fraud, the day and time when the said ship first left or was to leave.⁷⁵

After this section, all aspects concerning the voyage, the ships’ condition, cargo, responsibilities and obligations, instances of fraud, time periods, amounts, certifications, and relevant documentation are provided in detail. Finally, it is important to point out that ordinances also discussed shipwrecks: insurers ‘are obliged to pay in the case of any damage to sacks [sacas] and other merchandise … in the case of shipwreck’.⁷⁶ Among the related terms appearing in this text are avería gruesa, risgo, echazón,⁷⁷ fortuna, tormenta de la mar,⁷⁸ tormenta de mar notoria,⁷⁹ and fortuna e tormenta de la mar notoria.⁸⁰ The maritime and commercial legislation that grew out of the 1538 Burgos ordinances became a model and antecedent and had great influence in regulations later drawn up by the Consulados in Seville and those in the Americas.

In documents from the sixteenth and seventeenth centuries, one can find a multitude of references to avería with no explanation of its exact meaning, because along with the traditional avería gruesa there were also the avería consular and the Americas avería. In fact, avería gruesa itself is rarely used, making it necessary to consult judicial sources for the characteristics and particularities of the cases. The most common outcome was that maritime incidents and accidents would be argued before the courts, though it was not until the second half of the seventeenth century that averías gruesas were clearly distinguished. Until then, incidents were registered according to the cause or type of damage rather than with the term avería gruesa.⁸¹

Conclusion

This essay has described the process of mutualisation by communities of Castilian merchants through the establishment of guilds and consulados which, during the Middle Ages, had organizational structures regulating their internal functions and, most importantly, the risk (periculum) associated with maritime trade. Thus maritime law, which in Castile can be argued goes back to the Visigoths and was developed based on the legislation of Alfonso X the Wise, was redefined on the basis of seafaring traditions. At the same time, merchant associations and, later, institutions with their own mercantile jurisdiction, issued regulations concerning maritime risk, understood as all accidents at sea or arising from the sea and the forces of nature or human activity, summarized in three terms that would cover different risks: the charter contract, the avería, and maritime insurance.⁸²

In Castile, avería at first referred to a financial quota or contribution, and later on it would be classified as avería ordinaria or avería gruesa. The former was preventative and collection-oriented; the latter was compensatory or reparative, that is referring to avería-daño or maritime risk. Since the late Middle Ages the juridical term and its application generated great confusion both in legal terms and on a practical level, so much so that avería came to be understood according to the peculiar Spanish usage, while in reality it had been defined in the Partidas as an instance in which interested parties in a common maritime voyage divided up the economic cost of damages incurred by any one of them if this was done to save the ship, the cargo, or both. That is, there was a shared division among merchants themselves of the losses in favour of their common enterprise, though sometimes those who saved the cargo did nothing to ensure that losses were shared, meaning the parties would have to go to court.

However, the term avería gruesa appears quite late in Castilian sources. Rather, texts refer to the causes of the damage: jettison or fortuitous causes. Jettison was the most frequent cause for averías gruesas. Arising out of the late Middle Ages, these averías were never regarded as part of the Royal Treasury because they were always managed by consulados or associations (universidades). With new trade routes opening up after the discovery of America, a new juridical term appeared: the avería del tráfico indiano, whose meaning differs from the earlier terms. The objective of the Americas avería was to diminish the risk of ocean travel by creating a mandatory ‘security service’ financed by individuals, proportionate to their cargo, which would preventatively save their property and reduce the extraordinary risk of piracy. This time the crown took advantage of this opportunity to get involved by taking over the dispatch of the fleets and collection of the contribution or right to the avería de las Indias, which was consolidated under the control of the Royal Treasury, though things were handled so badly that management was handed back to the merchants. But the crown was one of the institutions most interested in protecting maritime trade given that regulations regarding this aspect meant greater fiscal resources. In fact, modernization of the navy and the merchant marine was a basic part of the strategy of global defence of Spain’s coastal possessions across the Atlantic.

In short, the central concept for the reduction of risk to ocean travel was the avería, as a formula for private protection and because it reduced the cost of maritime insurance. Despite some efforts by the crown, management remained in the hands of merchants.